When You Shouldn’t Tell the President

When you can’t prove that the White House did anything wrong, and you can’t prove that the White House knew that someone else was doing something wrong, what do you try to prove? That the White House knew there was an investigation into whether someone else was doing something wrong! That may sound scandalous, but, in fact, it’s perfectly appropriate.

That’s the lesson of the past several days in the evolving (and probably shrinking) Internal Revenue Service matter. Washington scandals and pseudoscandals follow a familiar pattern. First, there is an allegation of wrongdoing. Second, there is the question of a coverup: Who knew what when? (This dates from Howard Baker’s famous question at the Senate Watergate hearings: “What did the President know, and when did he know it?”)

The current I.R.S. matter is typical of the genre, though everything is accelerated at Internet speed. Last Friday, we learned that the I.R.S. apparently “targeted” conservative organizations that were seeking an advantageous tax status. It remains to be seen how many of these groups actually deserved the benefits of Section 501(c)(4) that they were seeking, but it does appear that some inappropriate ideological screening of applicants went on. (Lois Lerner, the I.R.S. official who oversaw the program, revealed Tuesday that she would be taking the Fifth Amendment before the House Committee on Oversight and Government Reform.) It was immediately clear that neither President Obama nor anyone in the White House ordered the alleged I.R.S. misconduct. So the question became what the White House “knew” about the wrongdoing.

It’s worth pausing to distinguish two kinds of “knowledge.” It’s undisputed, at this point, that no one at the White House knew about the I.R.S. scrutiny of conservative organizations while it was happening. (If someone there did know, and did nothing to stop it, that would be a problem.) So the only issue now is when the White House learned of the investigation of the I.R.S. for the misconduct. At Monday’s press briefing, Jay Carney, the White House press secretary, said Kathryn Ruemmler, the President’s counsel, was told of the investigation on April 24th. She shared that information with Denis McDonough, the chief of staff, and a handful of other officials. None of them told the President.

Is there anything wrong with what Ruemmler and the other officials did? I asked Glenn Fine, who served as the Inspector General of the Department of Justice from 2000 to 2011. (I first met Fine when he played basketball for Harvard. He figured, unintentionally, in the famous Boston College point-shaving scandal of 1978-79, which figured, intentionally, in “Goodfellas.”)

Fine pointed out that the existence of inspector-general investigations is “not secret”: “The people you are auditing know they are being audited. And the list of pending audits is generally public as well.” Indeed, Darrell Issa, the Republican congressman leading the inquiries of the White House, knew that the audit was in process. In any event, the report wasn’t even final until May 12th, by which time its existence was already widely publicized. “A draft report is never final until it’s final. Sometimes drafts are changed,” Fine said. The affected Department leadership is always allowed a chance to comment on or protest draft reports.

But shouldn’t Ruemmler et al. have told the President about the audit? Actually, that would have been just about the worst thing they could have done. “The thing you most want to avoid is that the White House, or anyone else, tells the I.G. what to do or contacts individuals who are being questioned in the audit and tries to influence their responses as well,” Fine said. By not telling the President, Ruemmler made sure that Obama could not be accused of influencing the audit.

In other words, White House officials seem to have engaged in the opposite of a coverup. They let the investigation proceed, and let the Inspector General do his job. They let the process play out. They played by the rules, which is what lawyers are supposed to do. The I.R.S. matter may eventually lead to revelations of wrongdoing at the White House—but this is not it.

Photograph of the former I.R.S. commissioner Douglas Shulman testifying at a Senate hearing on May 21st, by Pete Marovich/Bloomberg/Getty.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.